HARRY HUGHES, Governor

1077

substitute for a warrant. The Court noted, in Donovan, that
the pervasiveness and regularity of the federal regulation
ultimately determines whether a warrant is necessary to
render an inspection program reasonable under the Fourth
Amendment. The Court further noted that the length of time
for regulation could not be applied to a new or emerging
industry, such as the nuclear power industry.

As to private homes, absent consent or an emergency, a
warrantless inspection is unconstitutional. Steagald v.

United States, ____ U.S. ____ (1981); Payton v. New York,

445 U.S. 573 (1980).

There are also constitutional issues with regard to
administrative search warrants, or inspection warrants. The
Court of Appeals in Fred W. Allnutt, Inc. v. Commissioner of
Labor and Industry, 278 Md. 35 (1980) in remanding the case
to the circuit court for consideration of the merits of the
appeal, reviewed the application of Fourth Amendment
principles to administrative search warrants. In Camara v.
Municipal Court, 387 U.S. 523 (1967), the Supreme Court had
not permitted a warrantless administrative search of an
apartment by a housing inspector, but in Camara and its
companion case See v. City of Seattle, 387 U.S. 541 (1967),
did indicate that probable cause in the criminal sense was
not a constitutional requirement for obtaining a warrant.
However, the Supreme Court "did not clearly indicate what
showing of probable cause would comply with the
reasonableness standard". Allnutt, supra, at 43. The
Supreme Court in Marshall v. Barlow's, Inc., 436 U.S. 307
(1978), considered the administrative probable cause
necessary for issuing an administrative search warrant.
Barlow is interpreted to require for a finding of probable
cause that: (1) a reasonable legislative or administrative
inspection program exists; and (2) the proposed inspection
comes within that program.

Allnutt, supra, at 53, indicated that Article 89, § 2A
of the Code, which permits the issuance of certain
inspection warrants not based on probable cause, would need
to be examined to determine whether it is facially
constitutional in light of the Fourth Amendment, Article 26
of the State Declaration of Rights, and Barlow's and other
relevant cases.

For further discussion of the. issues on warrantless
searches, see FDA, EPA, and OSHA Inspections -- Practical
Considerations in Light of Marshall v. Barlow's, Inc., 39
Md. L. Rev. 715, (1980).

Also note that, absent any statutory authorization for
the issuance of an administrative warrant for an inspection,
there exists no authority for a Maryland Court to issue an
administrative warrant. In the Matter of Milligan, October,
1978, Anne Arundel County, Judge H. Chester Goudy.